The Good, the Bad, and the Ugly – What Retailers Need To Know About Recent and Pending Ohio Legislation

First, the good news.

The Employment Law Uniformity Act (House Bill 2) has been introduced in the Ohio House of Representatives.

House Bill 2 would significantly revise Ohio’s discrimination laws in several respects. Among other changes, HB 2 would:

Reduce the time in which to file lawsuits related to discrimination in the workplace from six years to 365 days. At the same time, HB 2 would consolidate the three different ways an individual who feels he or she has been discriminated against because of age in an employment decision can file a lawsuit. This means that all age discrimination claims related to employment would be subject to the 365-day limitation.

Eliminate personal liability for managers and supervisors. Currently, a manager or supervisor can be held jointly or individually liable with the employer for discriminatory conduct under Ohio’s Civil Rights Law. The intent of HB 2 is to exclude managers, supervisors, and employees from personal liability for discriminatory practices related to employment. This change would be consistent with federal law, which does not allow individual liability for supervisors.

Establish an affirmative defense to a claim of vicarious liability in which an employee alleges that his or her supervisor created a hostile work environment through sexually harassing behavior. Similar to the affirmative defense under federal law, an employer would have to prove that (1) it exercised reasonable care to prevent or promptly correct such behavior and (2) the employee unreasonable failed to take advantage or any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

Eliminate the possibility that employers would simultaneously defend a charge of discrimination before the Ohio Civil Rights Commission and in court. Under HB 2, an employee who files a claim with the Commission could not also file a civil lawsuit until that Commission has completed its investigation and made its determination. The statute of limitations on the lawsuit would be paused (“tolled”) until the Commission’s process is completed, at which time the statute would continue to run. For example, if an employee files a claim with the Commission on day 100, the employee would still have 265 days to file his or her lawsuit once the Commission’s process is completed.

Now, for the bad news.

Ohio’s retailers must permit their employees (and everyone else) to keep firearms in their cars in their parking lots.

In December 2016, the Ohio General Assembly enacted Senate Bill 199, which among other changes to Ohio’s concealed gun laws, permits gun owners to keep guns in their own cars while on their employer’s property. Previously, private employers were allowed to prohibit or restrict the presence of firearms on their property, including in their parking lots.

Now, a business entity, property owner, and public or private employer is prohibited from establishing, maintaining, or enforcing a policy that prohibits or has the effect of prohibiting a person with concealed handgun license from transporting or storing a firearm or ammunition when: (1) each firearm and all of the ammunition remains inside the person’s privately owned motor vehicle while the person is physically present inside the motor vehicle or is locked within that vehicle’s trunk, glove box, or other enclosed compartment or container; and (2) the vehicle is in a location where it is otherwise permitted to be. This means that an employer must now permit employees and visitors to keep their handguns in their cars when parked in the employer’s parking lot or parking garage.

The business entity, property owner, or public or private employer with immunity in civil actions for damages, injuries, or death resulting from or arising out of another person’s actions involving a firearm or ammunition transported or stored, including the theft of a firearm from an employee’s or invitee’s automobile, unless the business entity, property owner, or public or private employer intentionally solicited or procured the other person’s injurious actions.

Finally, the ugly.

A bill to dramatically enhance employee rights was introduced in the Ohio Senate.

Among other changes, Senate Bill 38 would raise the minimum wage to greater of $10.15 per hour or the wage specified by the Ohio Constitution. It would also raise the salary threshold above which certain employees are considered exempt from overtime compensation. In order to be exempt, an executive, administrative, or professional employee would have to be paid $50,000 annually in 2018 and $69,000 beginning in 2019. By comparison, the U.S. Department of Labor has sought to increase the overtime threshold to $47,476 (the DOL’s increase is currently on hold and its future is unknown).

The bill would also create a uniform standard – using a seven-prong test – to determine whether an individual is an employee or an independent contractor. Under SB 38, an individual would not be an “employee” only if the individual is (1) free from control and direction in connection with performing the services; (2) customarily engaged in an independently established trade, occupation, profession, or business that is the same as the service performed; (3) separate and distinct business entity; (4) incurring the main expenses and has business liabilities related to the service performed; (5) liable for breach of contract for failing to complete the service; (6) a party to an oral or written agreement describing the services to be performed, the payment, and the time frame for completion; and (7) performing service that is outside of the usual course of business of the employer. All of these conditions would have to apply in order for an individual to be an independent contractor. SB 38 would create a new cause of action and penalties for misclassifying individuals as independent contractors, prohibit retaliation against those who complain of misclassification, and require the Ohio Director of Commerce to publish the names of employers who commit multiple violations.

Both HB 2 and SB 38 were just introduced and have a long way to go before becoming law. In the meantime, we will keep you apprised of any significant developments with this and other employment-related legislation.

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